“That stuff is so rare,” Laura Appleman, an assistant
professor of law at Willamette University College of Law who has written on sentencing, says of “the Scott sisters’ ” case.

“The hallmark of modern sentencing is not much flexibility at all, and not just in Oregon,” Appleman elaborates. “On
the lower end (e.g., misdemeanors), there is some flexibility. And you can get out of Measure 11 [mandatory minimum sentences for certain crimes] by plea bargaining. But it can be tricky.
I don’t know how creative you can really get.”

And yet, all over Oregon, judges, prosecutors and defense
attorneys are getting creative.

They’re trading a bucket of chicken for a gastronomically
dissatisfied inmate’s guilty plea. Sentencing pugilistic racists to race-awareness classes. Ordering vandals to serve their jail
sentences in brief, annual shifts so they can keep working and
pay restitution.

They’re ordering probationers to watch movies, write essays or show up for frequent progress reports and pep talks. They’re even paying some probationers’ expenses out of their own pockets if that’s what’s required to get, or keep, them on track.

Yet they are aware of potential hazards.

“There are always appropriate opportunities under the existing sentence structure, whether it’s Measure 11 or the sentencing guidelines or misdemeanors,” says Marion County District Attorney Walt Beglau, who also chairs the Oregon District Attorneys Association. “But when you get too creative, that can be a problem. You want to be consistent, and there has to be a rational basis for each sentencing decision.”

Multnomah County Circuit Court Judge Michael McShane, who has been a particularly aggressive practitioner of judge-
supervised probation, says that he and his fellow county jurists are discussing how much help for probationers is too much help.

“‘What’s my role?’ McShane says he asks himself. “I become their (probationers’) counselor. You want them to seek help,
but when the person they are seeking help from is you, it’s very, very difficult.”

What Is the Goal?
Tung Yin, professor of criminal law at Lewis & Clark Law School, says that the starting point for any sentencing analysis is:“Why do we punish people? What do we expect to get out of criminal sanctions?”

In Yin’s view, criminal sanctions have four purposes: “retribution; deterrence (both general — ‘Look what happens when you break the law’ — and specific); incapacitation (to protect ourselves from the bad guys); and rehabilitation.”

“Traffic school is an example of general deterrence,” he says. “It’s a miserable experience. You get lectured and treated like a high schooler. But you do it, you remember the experience and it makes you more careful.”

In addition, even when thinking creatively, there are constitutional limits to what can be ordered at sentencing or at other junctures in criminal cases.

“You can’t chop people’s hands off or physically castrate them,” says Yin. “But I remember reading about some places that had experimented with chemical castration. That situation would be unlikely to generate any opposition because it would be the defendant who is proposing it. Part of it is a technical standing question: If the defendant agrees, who is in a position to complain? There may be public interest groups that would complain, but they wouldn’t have standing.”

“If the government says, ‘If you want to get out early, you have to take the deal,’ that has the air of consent,” Yin says. “You can take the deal or not take the deal. But the legal system recognizes that what looks like consent may not really be consent.”

For example, he cites the noncriminal case of Sherbert v. Verner, 374 US 398 (1963), in which the Supreme Court held that a state didn’t have to offer unemployment benefits, but if it did, it couldn’t disqualify an applicant who refused a job that required her to work on Saturdays in violation of her religious beliefs.

Yin also questions whether the state of Mississippi could enforce what he called a “bodily invasion” as a condition — albeit one suggested by the defendants themselves — of the release of the “Scott sisters.”

“It certainly couldn’t have been a condition of sentencing,”
he says.

There also are statutory and rule limits on sentencing that prosecutors, defense attorneys and judges ignore at the defendants’ peril, according to Salem defense attorney and sentencing expert Jesse Barton.

“In terms of being able to deal creatively with certain cases, we’re being hamstrung by the Department of Corrections (DOC),” says Barton.

For example, he says that the DOC refuses to give an inmate credit for any time they’ve served pending trial, even when that clearly was the parties’ and the judge’s intention, if it was served under case numbers different from the one(s) under which he actually was sentenced as part of a “global settlement” of that and the other cases.

Barton cites one case2 in which the defendant even was denied credit for time served when his victim died after he had begun serving a sentence for attempted murder and he was convicted of manslaughter — involving the same victim — under a different case number.

“That’s a really, really uphill battle for any defense attorney to try to fight post-conviction,” says Barton. “At the time of plea and sentencing, most people are not asking, ‘What will DOC think?’, but we should be.”

How Did We Get Here?
The development of Oregon’s criminal sentencing structure has, like that of other states, been driven by both philosophical and practical considerations.

Yin says that the importance of the four factors of retribution, deterrence, incapacitation and rehabilitation has tended to vary throughout history.

“In the ’80s,” he says, “there was a toughening on crime going on throughout the country. Rehabilitation came to be seen as a very soft approach versus retribution.”

In 1989, the Oregon Legislature adopted sentencing guidelines, which measure the severity of the crime committed
against the defendant’s personal history to arrive at a “presumptive” sentence.

Then, in 1994, voters passed Ballot Measure 11, which, among other things, mandates minimum prison sentences for offenders convicted of certain sexual and/or violent crimes. And, in 2008, they approved Ballot Measure 57, which created mandatory minimum sentences for certain non-Measure 11 crimes, although the Legislature sunseted its implementation because of prison overcrowding and other issues.

But, despite the facial strictures of these and other laws, some judges and prosecutors believe that Oregon’s sentencing system still has flexibility, even at the felony level.

“There are judges who try to fit sentences to their knowledge of the offenders’ backgrounds,” says Darryl Larson, a retired Lane County circuit court judge who chairs the Oregon Criminal Justice Commission. “It depends on what the defendant is convicted of. If he’s convicted of a Measure 11 offense, judges don’t have much leeway.”

To avoid that problem, he says, it’s not unusual for the parties to plea bargain a Measure 11 charge down to something that doesn’t carry a mandatory minimum sentence, with the defendant’s agreement that if he violates probation on that charge, he will receive a longer sentence than he otherwise could have.

Despite such options, some judges — as Yin could have predicted — began to swing away from the retribution/deterrence/incapacitation goals of sentencing.

“At a time when many of the nation’s judges feel hamstrung by proscribed sentencing guidelines,” USA Today reported in a 2004 article on “creative sentences,” “some judges still take advantage of the leeway they have. Though a number of judges are just reacting to the guidelines, others are imposing odd sentences out of frustration with repeat offenders or as a way to avoid sending small-time criminals to overcrowded jails. Others do it simply because they can.”

According to the article, “Felony and misdemeanor judges in every state have legal constraints on sentences, but judges in some states have leeway to add conditions.”1

Chicken With That Ice Cream?
How has this played out in Oregon?

In 2008, a Multnomah County inmate pled guilty to killing one man and terrorizing another in exchange for a bucket of chicken and other preferred foods.

Although the media dubbed him “the ice-cream killer” because his crimes resulted from a dispute over an ice-cream truck, Multnomah County Circuit Court Judge Eric Bergstrom, who brokered the settlement, says that “I always think of it as the Kentucky Fried Chicken case.”

Bergstrom spends much of his judicial time conducting settlement conferences on major felony cases like this one.

“When you’re talking to someone about facing the death penalty or spending the rest of his life in prison, that’s not a casual, one-half hour conversation,” he says. “Usually you meet with those guys many, many times. Often it’s about trust: they’re distrustful even of their own attorneys. A lot of it is gaining their trust so they can make the best decisions for themselves.”

In the KFC case, says Bergstrom, what the defendant/inmate really wanted in exchange for pleading guilty was to serve his time in his native New Jersey, something Bergstrom told him he could neither order nor promise.

“Then one day,” says Bergstrom, “he suddenly said, ‘I’ll do it (plead guilty) if you can get me a meal of fried chicken (among several other food items). If you can find a way for me to eat some food from the outside for the last time in my life, I’ll do it.’”

“I said, ‘Okay, but seriously, what’s the deal?’ And he said, ‘I figure if you’re powerful enough to get me fried chicken in jail, you can get me to New Jersey.’ ”

In fact, “The jail was the biggest obstacle, because they didn’t want all the other prisoners negotiating for food,” says former Multnomah County Deputy District Attorney Josh Lamborn, who co-prosecuted the case. “It took some doing. Judge Bergstrom finally said he could eat it in his jury room, and indigent defense paid for it. It would have cost taxpayers thousands of dollars if we had continued the trial” — which was already in its sixth day of jury selection before a different judge — “and much more to defend appeals or death-penalty appeals.”

Postscript: The defendant pled guilty to life with a minimum sentence of 35 years; thanked Bergstrom for “helping me make the hardest decision of my life” and is serving his time in New Jersey. Bergstrom still negotiates settlements although, at the jail’s insistence, food no longer is on the table (no pun intended).

“Our Conduct Was Flat-Out Wrong”
In 2009, a Lane County high school summoned a student’s parents to school because he had called another student a
racist slur.

The parents decided that it would de-escalate the situation to bring along the mom’s large nephew, repeat the same racist slur and hit both male and female students and at least one staff member. Then they drove off — without their son. Shortly thereafter, they were arrested, jailed and charged with intimidation and misdemeanor assault, and the police who accompanied social-service workers to their residence to check on their children discovered that they were growing marijuana within 1,000 feet of another school.

The latter circumstance led to the parents being charged with manufacturing and delivering controlled substances, which carry “significant prison time,” according to Deputy District Attorney Mike Pugh, who handled the case.

But Pugh was inspired to pursue a different outcome.

“Clearly the issues were race-related and having a marijuana grow operation around kids,” he explains. “The crimes at the school were committed spontaneously and without provocation, and caused significant disruption. There were a fair number of victims. We wanted to show the school that we were trying to deal with the underlying problem.”

So Pugh offered to waive prison time if the defendants served jail sentences — six months for the parents, four for the nephew — and successfully completed a multi-week program on race education and awareness.

“The defense attorneys were happy to do it because it dealt with the underlying issue, and their clients got departures from prison sentences,” says Pugh.

Postscript: “After the defendants had completed their jail sentences and the program,” says Pugh, “I opened the paper one day and there was a guest editorial by them.”

The editorial, which ran in the Register-Guard under the caption “We’ve learned our lesson: Racism hurts, and we’re sorry,” showed that the defendants had learned, among other things, more judicious use of language.

“On Feb. 24, 2009,” they wrote one year later, “a conflict occurred… involving ourselves and three students of African-American descent. We offer a most sincere and heartfelt apology for instigating this confrontation. Our conduct and behavior throughout this incident was flat-out wrong and inappropriate.”

“Through this (race-awareness) program, we had the opportunity to meet with members of the local African-American community and learn from them the damage that racism in our society has caused many people,” they continued. “…Our experience over this past 11 months has taught us many things. Above all, we now can see things from another person’s reality. We know that racism is morally and spiritually wrong, and that its effects can and do hurt all of us in this society… We thank Assistant District Attorney Mike Pugh, Judge (Karsten) Rasmussen, Judge (Douglas) Mitchell and (Greg) Evans (the educator who developed the program) for helping us to begin to understand the issues that all of us face with race and race relations.”

Lights Out
Around the same time that the Lane County defendants were writing their editorial, two men were charged with shooting out the irreplaceable, French-made lens of Tillamook County’s historic Cape Meares Lighthouse the previous month.

“Two adults, gainfully employed, living out at the beach, drinking, fooling around, decide that it would be a good idea to drive around a barricade and do an astonishing amount of damage to a historical lighthouse,” says District Attorney William “Bill” Porter.

Porter says that his office wasn’t opposed to reducing their felony charges to misdemeanors, on which offenders can serve up to one year in jail if space is available. In fact, he says, in light of the 2009 legislation (House Bill 3508) that limits the time felons can do on most probation violations to 60 days, “In counties like mine, that have jail space, it’s better to negotiate for misdemeanors.”

But Tillamook County’s two judges recused themselves
from the case, and the defense requested an out-of-county settlement judge.

On Dec. 30, 2010, The Oregonian reported that “A creative sentencing agreement” had resulted in the men being ordered to serve three, 16-day stints in jail over the next three years and to make $100,000 in restitution, $68,000 of which was paid up front.

“I thought it was a very unique opportunity for these guys to give something back to the community,” The Oregonian quoted the judge as saying. “It was a win-win for these young men, but more importantly a win-win for the community.”

“The idea was to not take that (their jobs) away because they had one stupid night and did some really stupid things,” the paper quoted the judge. “They took responsibility and said we deserve to have a penalty imposed.”

The judge told The Oregonian the two men admitted they had been drinking “but they didn’t use that as an excuse.”

“They said it was the dumbest thing they ever did in their lives,” he added.

“This is not some tale of collaborative goal-reaching,” he says. “He (the settlement judge) basically told us what he was going to do. This is not how we would have handled the case at all.”

But John Henry Hingson III of Oregon City, who represented one of the co-defendants, has nothing but praise for the judge and the process.

“This was not handled in the traditional way of one side looking at the other and trying to scare their pants off,” Hingson says approvingly. “It was a marvelous tribute to restorative justice.”

Postscript: On Feb. 10, 2011, The Oregonian reported that “One of the two young men [not Hingson’s client] given a creative sentence for his role in shooting up the Cape Meares Lighthouse has allegedly violated probation barely six weeks later.”

According to the paper, he was arrested after showing up at the sheriff’s office, under the influence of alcohol and drugs, to claim property seized during the investigation of the lighthouse vandalism. A probation-violation hearing is pending.

A Small, Quiet Victory
This year, Wasco County defense attorney Rob Raschio negotiated an agreement with Wasco County District Attorney Eric Nisley – not really a condition of sentencing – in which a young burglar agreed to meet with his victims.

“That’s not some kind of fresh concept,” says Raschio, who is president of the Oregon Criminal Defense Lawyers Association. “For years, the families of murder victims have been meeting with the persons who killed their family members, trying to find some sense of understanding.”

Raschio mentions an NPR “StoryCorps” segment which aired in May in which the man who murdered a woman’s son eventually developed a relationship with her.

“He now actually lives next door to her,” says Raschio. “They are very tight, and he’s taken on the role of taking care of her.”

Raschio says that in his mid-Columbia case, the victims were not people who, like this mother, “had experienced an enormous amount of pain in their lives.”

“The defendant had entered their house through an unlocked door,” he says. “What was most important to them was to meet him because he was about the same age as their son.”

Postscript: “They were able to ask him why he did it,” says Raschio of the defendant/victims meeting, “and my client got a very good deal that they agreed to and was able to return to his family in another state. The experience was moving and
everyone got some closure and an appropriate resolution to a
difficult situation.”

Creativity in Probation
Judicial creativity in Oregon also extends to lesser crimes and to probation.

For example, the Criminal Justice Commission’s chair, Larson, who retired from the Lane County bench four years ago, says he “often had people write two- to three-page synopses describing their lives” after budget and staff cuts greatly reduced the
number of presentence reports judges received from probation
departments.

“I heard (from defendants), more than once, that ‘I never really thought about that,’ ” says Larson. “‘I lived it but I didn’t even think about it.’ ”

Larson says that once he sentenced a defendant – an “old-pick-up-driving, Jesus-loves-you kind of guy” who had cut down an elderly woman’s trees for her but left the debris in a ditch – to watch the movie “Alice’s Restaurant” and write a report on it.

The movie is about a man, played by Arlo Guthrie, who takes a friend’s trash to the dump as a favor but, when he finds the dump closed, drops it on top of another pile of garbage at the bottom of a ravine, resulting in a major manhunt.

“The D.A. wanted five days in jail with credit for time served and to be done with it,” Larson says of the litterer who appeared before him. Later he said, ‘That’s the best sentence you could have given him.’ ”

Larson, who presided over Lane County’s drug court for seven years, says he found that the specialized court model of intensely supervising probationers also worked outside of those programs.

“I’d say to probationers, ‘Every two weeks, come see me and I’ll give you marching orders about what I expect you to accomplish.’ I did that a lot: getting people who had been miserable failures on formal probation to show success rather than failure. I actually paid money out of my own pocket to get some people where they needed to go. If somebody needed $20 to get on a waitlist for treatment, I’d pay it.”

The community court, which focuses on misdemeanor “quality-of-life” crimes such as theft, prostitution, drinking in public and trespass, frequently dismisses cases after the defendants have successfully completed or obtained court-ordered community and/or social services.

“I’m not aware of any kidneys or other bodily organs being traded for relief,” he quips in reference to the “Scott sisters” case, “but I did see a young man in community court who was ordered to visit with five people who do the job he told the judge he wants to do someday. I don’t remember what the job was, but when the kid came back, he had this look in his eyes like he wasn’t
lost anymore.”

In Multnomah County, some circuit court judges currently are doing much the same thing that Larson did in Lane County: requiring offenders on “bench” probation to report frequently with proof of progress and helping them, financially and in other ways, when their progress is impeded.

“I buy the guys bagels and chocolate with my own money,” says Eric Bloch, who runs the county’s federally funded START program for substance-abusing property-crime offenders.

Bloch acknowledges that “the traditional judicial role is more detached.”

“There’s a place for that,” says Bloch, who was appointed to the bench in 2003. “But when you’re a treatment court judge, you do get more involved, hopefully not in a way that clouds your judgment. In surveys of participants in these types of programs, 70 percent say their relationship with the judge is a factor in their success. A lot of these people have never received any positive attention, never been talked to successfully, never had anyone care about them. Part of this is to give them the feeling that ‘this team really wants you to be successful: You pull the laboring oar, but if you do that, we’re with you all the way.’ ”

“I had a program that had no money to give participants,” Bloch continues, “so someone said, ‘You can write them letters.’ I did so and heard that they were framing them, putting them on their refrigerators, etc. When you realize that, it’s a — pardon the pun — sobering thought.”

Michael McShane, who was a Multnomah County pro tem judge before being appointed to the bench in 2000, says that he “can’t imagine my job not being to help, to see a defendant who is pregnant, using (drugs) and wants help and to say, ‘I’m sorry, go contact your lawyer who doesn’t represent you anymore.’ ”

‘I’m not trying to run a charity,” says McShane, “but if somebody needs to be taken to detox, I sleep better at night knowing I did it. I probably do step in a little bit more, but you want people to succeed, to not pose a danger to those around them.”

“I could go on forever about how broken our system is,”
McShane says with frustration. “We have very little ability to change lives.”

Nonetheless, they are trying.

“Often, because of our role, we are able to effectuate change that benefits society and victims by supervising offenders and requiring that they comply with conditions of probation,” says Multnomah County’s presiding judge, Jean Kerr Maurer. “When we become judges, we are not asked to check our humanity at
the door.”

But, although Maurer says that “within the provisions of the Judicial Code of Conduct,” she “doesn’t see any conflict between a judge wanting to do the right thing and fealty to the judicial code of ethics,” McShane says that he recognizes other limitations.

“One question we’re asking ourselves is, does everybody need to be supervised?” he says. “There are some people who can do fine without us. We do have risk-assessment tools to guide us on who really needs to be on supervision, but budget cuts have eliminated use of those tools.”

“More and more of us are setting these follow-up, show-proof hearings,” McShane says of the kind of appearances Larson required when he was on the Lane County bench. “But it takes a lot of time to keep setting and holding court hearings. One person can take hours of time at a hearing. One Friday, I had 27 people reporting on whether they were in DUII compliance.”

“One issue we’re all struggling with, as more and more people are on bench probation or court supervision, is what is our role?” McShane concludes. “We’re all pretty different. Some judges have no personal contact with their probationers; they think it’s unethical. And some just can’t be a bystander. In my court, instead of saying, ‘You’re on bench probation, good luck,’ we’ve had some people check in, literally every day, with my staff or me. But cutbacks to staff have made this very, very difficult to manage.”

“In addition,” says McShane, “there have been many times when a creative sentence fails despite everyone’s best intentions. I am reminded of many teenage Measure 11 defendants whom I ultimately sent to prison after they failed to follow through with plea deals that gave them an opportunity to prove themselves in the community. Despite my disappointment, however, invariably I hear back from them, later in life, telling me that prison was the best thing that happened to them and probably saved their lives. This always surprises me, but I think many of them simply do not possess the frontal lobe maturity or stability and support to succeed despite my best intentions for them.”

And then there are the times when something less than prison does work. McShane recalls a defendant who, not out of “creativity” but because the D.A. needed his testimony against co-defendants, was allowed to serve a local sentence with release to inpatient treatment in a robbery-turned-aggravated murder.

“He is now in his final phase and appears to be doing great,” says McShane, who saw him last month. “He is a big man and I really wasn’t sure what to expect when I saw him walking up to me: until then, I had only seen him in a jump suit and chains.
He gave me quite an unexpected bear hug.”

Endnotes

1. In the consolidated cases of United States v. Booker and United States v. Fanfan, 543 U.S. 220 (2005), the U.S. Supreme Court held that the federal sentencing guidelines — which the 2004 USA Today article described as the “most restrictive” because “judges tally up the offenses and use a formula set by Congress to determine prison time” — were advisory and not binding.

2. State v. Lavitsky, 171 Or. App. 506 (2000).

ABOUT THE AUTHOR
Janine Robben has been a member of the Oregon State Bar since 1980 and is a frequent contributor to the Bulletin. She is legal director of the Oregon Crime Victims Law Center.